Veerabadrappa Vs S.G.Gope Gowdu

PRAYER: Second Appeal filed under Section 100 of Code of Civil Procedure against the judgement and decree dated 11.12.1996 in A.S.No.151 of 1996 on the file of the Subordinate Court, Hosur, confirming the Judgment and Decree dated 18.03.1996 in O.S.No.691 of 1993 on the file of the District Munsif, Denkanikottai.

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For Appellant : Mr.V.Sekar for Mr.C.R.Muralidharan For Respondents 1 & 2 : Mr.G.Vigneswar for Mr.V.Nicholas For Respondents 3 & 4 : No appearance

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JUDGMENT

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The plaintiff is the appellant in the second appeal. He challenges the judgment of the learned Subordinate Judge at Hosur in A.S.No.151 of 1996 dated 11.12.1996 in confirming the judgment

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and decree of the learned District Munsif at DenkaniKottai in O.S.No.691 of 1993 dated 18.03.1996.

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For the sake of convenience, the parties shall be referred to as per their ranks in the suit.

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The case of the plaintiff is that the property situated in S.No.44/2, Doddamati Village, DenkaniKottai Taluk, Krishnagiri District belonged to two brothers, viz., Kempe Gowdu and Munia Gowdu. The extent of their holdings being 1.35 acres. The defendants are the descendants of Kempe Gowdu. The plaintiff pleaded that Munia Gowdu married one Devamma and begot a female child, Kenjamma. Kenjamma married one Somalingappa. Munia Gowdu had passed away about 70 years prior to the presentation of the plaint. He pleaded that out of the 1.35 acres, 67 ½ cents each were enjoyed by Kempe Gowdu and Munia Gowdu.

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Of the 67 ½ cents, which came to the hands of Munia Gowdu, was enjoyed by Devamma. Thereafter, by way of a settlement deed dated 15.06.1950, she settled the same in favour of her daughter, Kenjamma and her son-in-law, Somalingappa. The

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said Kenjamma and Somalingappa sold the property in favour of the plaintiff on 07.04.1983. As the plaintiff's title was being disputed by

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the defendants and his possession was being disturbed, he cameforth with a suit for declaration of title and for permanent injunction.

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The defendants pleaded that the property belonged to Kempe Gowdu and that, he had been in possession and enjoyment of the property, by mutating the revenue records in his favour, for several years. Thereafter, the defendants have been in possession of the same. They pleaded that the plaintiff does not have any right, title, or interest over the property. They added that Kenjamma was not the only daughter of Munia Gowdu and Devamma and there were two other children, from whom the plaintiff had not purchased the property and hence, the sale is not valid.

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On the basis of these pleadings, the learned Trial Judge framed the following issues:

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tp!;jPuzj;jpy; Knd ft[Lf;F ghfk; cz;lh>

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2/ bfk;ng ft[L gy tUl';fSf;F Kd;g[ ghfk; gphpj;Jf; bfhz;L Kndft[L ghfj;jpw;F 67 1-2 brd;l;

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tH';fg;gltpy;iyah>

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3/ Knd ft[L kidtp njtk;kh mth; kfs; bgahpYk;. Mth ; kUkfs ; bgahpYk ; 67 1-2 brd;l; r/vz;/44-2?y ; 15/06/1950?y ; Vw;gl;l jhd brl;oy;bkd;l; bry;yj;jf;fjpy;iyah>

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4/ gpujpthjpfs; jhrpy;jhh;. njd;fdpf;nfhl;il Kd;g[ nky; KiwaPL bra;J mJ tprhuiz bra;ahky; js;Sgo bra;ag;gl;l gpwF 28?10?1992?y; cjtp Ml;rpah; XNh; Kd;g[ mg;gPy ; bra;J mJ js;Sgo bra;ag;gl;lJ vd;W brhy;tJ cz;ikjhdh>

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5/ thjp jhth brhj;jpy ; 1983 Kjy; ve;j ,il";rYk ; ,y;yhky ; bjhlh;e;J mDgtpj;J tUfpwhuh>

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gpujpthjpfs ; 1 Kjy ; 4 jhth brhj;jpy; gpuntrpf;f Kaw;rpj;jhh;fsh>

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7/ jhth brhj;J gpujpthjpfspd ; g{h;tPf brhj;Jf;fsh. mth;fSk ; mth;fsJ K:jhijah;fSk; jhth brhj;jpy ; gy tUl';fshf mDgtpj;J te;jhh;fsh>

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8/ gpujpthjpfs ; jhth brhj;ij gy tUl';fshf mDgtpj;J te;jjd ; nghpy ; mth;fSf;F vjphpil mDgtk; rpj;jpj;J tpl;ljh>

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On the side of the plaintiff, he examined himself and four other witnesses as PW1 to PW5. He marked Ex.A1 to Ex.A13. On the side

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of the defendants, the first defendant examined himself as DW1 and another witness as DW2, and marked Ex.B1 to Ex.B9.

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Upon consideration of the oral and documentary evidence, the learned Trial Judge came to a conclusion that the plaintiff had not proved his title to the property and dismissed the suit. Aggrieved by the same, the plaintiff preferred A.S.No.151 of 1996. The learned Subordinate Judge at Hosur confirmed the said judgment. Hence, this second appeal at the instance of the plaintiff.

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This court admitted the second appeal on 10.12.2003 and framed the following substantial questions of law:

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“1.Whether the Courts below are right in rejecting the suit of the plaintiff without reference to Ex.A1 registered sale deed in favour of the plaintiff in respect of the suit properties, as also the registered settlement deed in favour of the predecessors of the vendors of the Plaintiff, particularly when the Defendant had not adduced any evidence to counter the entitlement of the plaintiff to the suit properties?

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2.Whether the courts below had erred in not considering the valid and proper title of the plaintiff to the suit properties, as evidenced by documents, in contrast to the claim of the defendants to the same?

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3. Whether the courts below had erred in dismissing the suit of the Plaintiff for title on the ground that he had failed to establish his lawful possession of the suit

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properties, without considering the entitlement of the Plaintiff on the basis of his adverse possession for over the statutory period?”

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I heard Mr.V.Sekar for Mr.C.R.Muralidharan for the

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appellant and Mr.G.Vigneswaran for Mr.V.Nicholas for the respondent.

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Mr.V.Sekar urges that there was an oral partition between

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Kempe Gowdu and Munia Gowdu and half of the property, namely, 67 ½ cents, had been allotted to the share of Munia Gowdu. He pleads that this is the suit property. He added that Munia Gowdu had died years before, leaving behind his wife Devamma and daughter Kenjamma as his heirs. Hence, as Munia Gowdu had died prior to the enforcement of Hindu Succession Act, 1956, Devamma succeeded to all the estates. Devamma had executed a settlement deed on 15.06.1950 in favour of Kenjamma and Somalingappa, the vendors of the plaintiff. Hence, the plaintiff is entitled to this portion of the property, which had been held independently by Munia Gowdu. He further added that, as the plaintiff has been in enjoyment and possession over a period of 12 years prior to the filing of the suit, he had perfected his title by adverse possession. He pleads that the learned Trial Judge had rejected the revenue documents that had been produced by the plaintiff to substantiate his plea. This had been erroneously confirmed by the lower appellate court. He states as it is

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a case of improper appreciation of evidence, the appeal deserves to be allowed.

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Per contra, Mr.G.Vigneswaran for the respondents urges that between these parties, there had been an earlier suit in O.S.No.191 of 1983 on the file of the District Munsif Court at Hosur. This proceedings went against the appellant. So did, the appeal preferred therefrom before the learned District Judge at Krishnagiri in A.S.No.38 of 1983. The revenue records that had been relied upon by the plaintiff under Ex.A4 to Ex.A13 all relate to a period subsequent to 1983 and they are post litem documents. He points out that, when the plaintiff has not been in a position to prove his title over the property, by filing the earlier title documents, only on the basis of Ex.A1 and Ex.A2, this court cannot come to the conclusion that the plaintiff is the owner thereof.

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I have carefully considered the submissions of both sides and have gone through the records.

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A perusal of Ex.A1 shows that, what had been transferred in favour of the plaintiff is the undivided half share in the suit schedule mentioned property. When the case of the plaintiff is based on Ex.A1, which shows he is entitled only to an undivided share, a suit for declaration of title is certainly not a remedy. At best, the plaintiff is a third

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party purchaser from the family of the two brothers, namely, Munia Gowdu and Kempa Gowdu. The remedy for a purchaser of a property from one of the two brothers, who have not divided the property amongst themselves, is to present a suit for partition and seek for allotment of a share in his favour. A suit for declaration of title is certainly not tenable.

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Insofar as the plea of adverse possession is concerned, the plaintiff should have been in possession and enjoyment of the property for a period of more than 12 years, openly, continuously, and in hostility to the defendants. Admittedly, the property had been purchased on 07.04.1983. The suit was presented before the learned District Munsif at Hosur on 11.10.1991 and taken on file as O.S.No.276 of 1991. Thereafter, the suit was transferred to the file of the District Munsif Court, Denkanikottai and renumbered as O,S.No.691 of 1993.

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Even if I were to assume that, the plaintiff satisfies the aforesaid requirement of hostility, the period of 12 years had not lapsed. Furthermore, Ex.B6 points out that the earlier litigation was pending in O.S.No.191 of 1983. The purchase made in April 1983 cannot crystallise into adverse possession, when the litigation between the parties commenced in 1983 itself.

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Another aspect, which looms large in this case, although the plaintiff claims title by the sale deed dated 07.04.1983, he seems to have secure joint patta in his name in January 1983. It is beyond understanding as to how a person, who purchased the property in April, was able to get his name inserted in the revenue records in January.

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In addition, as rightly contended by the learned counsel for the respondents, that the revenue documents that have been filed commencing from fasli year 1394 corresponds to 1985 CE. Post litem document cannot be relied upon for the purpose of decreeing a suit for title. In addition, if I were to examine the revenue records, I am able to see that, Ex.B5 is of the year 1942. This shows that the predecessor of the defendants had been in possession of the property much earlier.

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The result of this discussion is that a suit for declaration of title at the instance of a person, who has purchased a common half share in the property, is not maintainable. The substantial questions of law framed by this court at the time of admission of this appeal are answered in favour of the respondents.

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Both the trial court as well as the lower appellate court have correctly appreciated the facts on hand and have concurrently come to the conclusion that the plaintiff has not proved his title to the property. I

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find no reason to take a different view than that has been taken by the courts below. Consequently, the second appeal is dismissed with costs. The judgment and decree of the learned Subordinate Judge at Hosur in A.S.No.151 of 1996 dated 11.12.1996, confirming the judgment and decree of the District Munsif, Denkanikottai in O.S.No.691 of 1993 dated 18.03.1996 is confirmed. The dismissal of the second appeal will not stand in the way of the plaintiff to file a suit for partition, if he is otherwise entitled to do the same.

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nl

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Index : Yes/No Speaking order/Non-speaking order Neutral Citation : Yes/No

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To